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Virginia Conti v. Mercury Insurance Company

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 27, 2012

VIRGINIA CONTI, PLAINTIFF-APPELLANT,
v.
MERCURY INSURANCE COMPANY, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-592-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 22, 2012

Before Judges J. N. Harris and Fasciale.

This appeal arises from arbitration of a dispute about personal injury protection (PIP) benefits after a motor vehicle accident. See N.J.S.A. 39:6A-5, -5.1, -5.2. Plaintiff Virginia Conti appeals from the Law Division's April 15, 2011 order denying her application to vacate an arbitration award entered pursuant to the Alternative Procedure for Dispute Resolution Act (the Act), N.J.S.A. 2A:23A-1 to -19, which declined to authorize her physician's recommendation for cervical surgery.

On May 12, 2008, Conti was involved in a motor vehicle accident in which she purportedly sustained a serious injury to her cervical spine. Although cervical decompression and fusion surgery was recommended by Conti's treating physician, defendant Mercury Insurance Company, her PIP insurer, deemed the treatment unwarranted.

Conti initiated statutorily-mandated arbitration as the means to resolve the dispute over whether the surgery was medically reasonable, necessary, and causally related to the accident. After initially successfully reversing an adverse determination by the arbitrator and having the dispute reviewed anew, Conti ultimately failed to persuade the arbitral forum that the surgery was appropriate. The final arbitration award declared that "the scales of justice . . . have not tipped from the original position of equipoise, even ever so slightly, in favor to [Conti]." Because Conti bore the burden of proof to show that the cervical surgery was clinically supported as medically necessary, the award determined that "the requested cervical surgery is denied."

Conti sought summary review in the Law Division pursuant to N.J.S.A. 2A:23A-13(b), contending that the arbitrator exceeded his power and committed prejudicial error by erroneously applying law to the issues and facts presented. Judge John A. Peterson, Jr. reviewed the parties' countervailing positions and rendered a comprehensive oral opinion finding no basis to disturb the arbitration award. Judge Peterson canvassed the entire record, noting that the arbitrator had undertaken the same task. Finding neither prejudice nor legal error, Judge Peterson refused to vacate the arbitration award and carefully explained the grounds for so acting. This appeal followed.

By utilizing the Act, the parties waived their right to appeal to this court. Mt. Hope Dev. Assocs., EAJ, Inc. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 149 (1998). The Act provides a streamlined and limited process for a party seeking to challenge an arbitration award. The proceedings are "summary in nature and expedited . . . to effectuate [the Act's] remedial purpose of allowing parties by agreement to have resolution of factual and legal issues in accordance with informal proceedings and limited judicial review in an expedited manner." N.J.S.A. 2A:23A-19. The fundamental policy of the Act is "finality and limited judicial involvement." Mt. Hope Dev. Assocs., supra, 154 N.J. at 149 (quoting Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 361 (1994)). Accordingly, our intervention is limited to "those 'rare circumstances' grounded in public policy that might compel . . . limited appellate review." Id. at 152 (quoting Tretina Printing, supra, 135 N.J. at 364-65); see also Ft. Lee Surgery Ctr., Inc. v. Proformance Ins. Co., 412 N.J. Super. 99, 102 (App. Div. 2010).

Such "rare circumstances" exist, for instance, where the trial court acted with bias, Mt. Hope Development Associates, supra, 154 N.J. at 152; imposed an unauthorized remedy, Open MRI & Imaging of Rochelle Park v. Mercury Insurance Group, 421 N.J. Super. 160, 166 (App. Div. 2011); applied a standard of review that is contrary to the statute, Morel v. State Farm Insurance Company, 396 N.J. Super. 472, 475-76 (App. Div. 2007); or acted contrary to the policy embodied in the Act, Selective Insurance Company of America v. Rothman, 414 N.J. Super. 331, 341-42 (App. Div. 2010), aff'd, 208 N.J. 580 (2012). Additionally, appellate review is permitted where the non-delegable supervisory function of the courts is implicated. See Faherty v Faherty, 97 N.J. 99, 109 (1984) (child support order); Allstate Ins. Co. v. Sabato, 380 N.J. Super. 463, 472-76 (App. Div. 2005) (attorney's fees award). Appellate review, however, is not available where a party argues mistaken findings or conclusions of either the arbitrator or the trial court, even if the trial court may have exercised its review function "imperfectly." Ft. Lee Surgery Ctr., supra, 412 N.J. Super. at 104.

Here, Judge Peterson correctly understood his statutory authority when he concluded that Conti did not demonstrate any grounds under N.J.S.A. 2A:23A-13 to vacate the award. When the Law Division confirms an award with a rational explanation and under the correct standard of review, we do not have authority to further review its factual findings and legal conclusions. Ft. Lee Surgery Ctr., supra, 412 N.J. Super. at 104. Because Conti has not shown "rare circumstances" permitting our appellate review, we dismiss her appeal in accordance with N.J.S.A. 2A:23A-18(b). Had we jurisdiction in this matter, we would affirm substantially for the reasons set forth in Judge Peterson's oral decision. But our role does not extend so far.

Appeal dismissed.

20120827

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